Thursday, October 3, 2013
Immigration Article of the Day: One Path for 'Post-Racial' Employment Discrimination Cases -- Inserting Implicit Bias Research into Social Framework Evidenceby Tanya Kateri Hernandez
One Path for 'Post-Racial' Employment Discrimination Cases -- Inserting Implicit Bias Research into Social Framework Evidence by Tanya Kateri Hernandez Fordham University School of Law September 17, 2013 32 Journal of Law & Inequality, 2014 (Forthcoming) Fordham Law Legal Studies Research Paper (Forthcoming)
Abstract: Today’s legal civil rights struggle is in large measure the effort to retain the foundational premise that racial discrimination is still a pervasive and problematic dynamic that law should be engaged in addressing. Within the employment discrimination context the attempt to salvage anti-discrimination law doctrine has been lodged on several fronts. Of particular note has been the effort to incorporate “social framework” evidence. Yet, given the powerful societal conviction in a “post-racial” American narrative of discrimination as an exceptionally rare event caused by aberrant malicious individuals, general social framework evidence alone will be unlikely to assist most plaintiffs present a persuasive case of discrimination. What is needed is a legal tool that can directly speak to the larger societal narrative in ways that assist fact-finders better understand contemporary manifestations of discrimination. This Article proposes that the use of general social framework evidence specifically incorporate the burgeoning social psychology literature regarding “implicit bias.” When the Civil Rights Act of 1964 was enacted there was no particular need for litigants to import social framework evidence let alone implicit bias data. Newspapers and the televised evening news were replete with concrete images of the reality of the violence of racial segregation and the relevance of race in how society was structured. The social context of the time provided every discrimination case an immediate social framework for processing claims and understanding that circumstantial evidence of discrimination was sufficient in the absence of a defendant’s legal justification for differential treatment, status or access. The social context of the reality of racism was the metaphorical glue that connected differential status and the absence of a nondiscriminatory employer justification into a structure identified as “discrimination.” But with the dismantlement of visible Jim Crow segregation and the cessation in television film coverage of massive physical brutality against scores of African Americans, the reality of racism became more attenuated for those not directly affected by it. What is needed is a new form of metaphorical glue. This Article concludes that social framework evidence as informed by the social psychology data about implicit bias may be the new metaphorical glue that is needed for properly assessing claims of discrimination.